Monday, February 19, 2001

The Neglected Right

A civil right that people do not know about isn’t a civil right, as important as it may be to those who need its protection. Rights need to find expression in law and acknowledgement, if not also acceptance, in public opinion and the media. By this standard, the employment rights of religious persons do not pass muster. There are laws – federal and state – but scant recognition that they exist. This is the civil right that isn’t.

Prospects were better a generation ago. In the last 1960’s, Greyhound fired a Black Muslim bus driver named Ibrahim. His misdeed was that out of religious conviction he had a beard and the company claimed that it might become entangled in the vehicle’s steering wheel, endangering the lives of passengers. Although the notion was absurd, it scarcely mattered because there were no laws protecting religious persons against job discrimination. The usual victims were Sabbath observers, many of them Orthodox Jews.

A few years earlier, the National Jewish Commission on Law and Public Affairs or COLPA was established to promote the legal and legislative needs of Orthodox Jewry. I was the group’s first president. We learned of the Ibrahim matter and successfully interceded on his behalf, thereby opening up an area of fruitful activity. In quick order, Congress protected Sabbath observers and key states followed suit, cases were brought and won, usually by COLPA attorneys who were associates at prestigious law firms, and attention was being paid.

Everything was coming up roses or so it seemed. The passage of time, however, has not been kind to the cause. Orthodox Jews are now employed in many places where they once weren’t welcome. Progress has been made. But COLPA is barely alive and while there are more than ten times the number of Orthodox lawyers in major firms than there were 30 years ago, there isn’t as much as one-tenth of the pro bono legal work.

In the meantime, employers who are determined to discriminate have become more sophisticated. It doesn’t take much to figure out that a yarmulka-wearing applicant is not going to be at the job on Friday evenings and Saturdays. Worst of all, thousands of Orthodox Jews who have been hired work at back-office jobs, with little hope of advancement and at salaries that are insufficient to provide for their families.

Enforcement of the rights of Sabbath observers has been hampered by an overdose of benign neglect. Our major organizations talk a good game about tolerance and civil rights, but that’s for other people, not for Orthodox Jews. I suppose that an aversion to publicity is what prevents Jewish defense organizations from declaring their opposition to job market discrimination against religious Jews.

Neglect breeds further neglect, so that what is incorporated in civil rights laws has become the civil right that isn’t. Whatever little media coverage there is tends to be perfunctory.

This state of affairs is illustrated by the recent settlement reached by New York Attorney General Eliot Spitzer with Jean Louise David, the chain of hair salons. The company fired Eliezer Katanov, a Russian immigrant who insisted on keeping his yarmulka on as he cut off his clients’ hair. The settlement provides for important accommodations to religious Jews, which is to the company’s credit.

Unfortunately, the larger message of the settlement is being lost because the story has scarcely been covered.

Much the same happened last year when Mr. Spitzer reached a comprehensive settlement with Sears Roebuck after it refused to hire Sabbath observers as repair technicians. The benefits of an important civil rights victory were diminished because of inattention. Incidentally, these settlements were substantially the work of my son Avi who serves as deputy counsel to the Attorney General, a circumstance that is gratifying because he is continuing something that I began a generation ago and because of the intelligence and courage that he has shown.

More of us have to understand that it is wrong to discriminate in the workplace against religious persons. It’s wrong because it is against the law. It’s wrong because it’s immoral. It’s wrong because society is being hurt. And it’s wrong for American Jewry which talks a good game about civil rights and tolerance to continue to do so little to assist religious Jews.